OSHA recently implemented a new rule associated with electronically tracking workplace injuries and illnesses. But, the rule’s provisions are proving to be controversial among construction industry employers and member associations.

According to an Associated General Contractors of America news release, the rule could “prohibit or restrict [a company’s] post-incident drug testing program and safety incentive programs.”

“Our new reporting requirements will nudge employers to prevent work injuries to show investors, job seekers, customers, and the public they operate safe and well-managed facilities."

One of the biggest issues with the rule, says Kevin Cannon, AGC’s Senior Director of Safety and Health Services, is the uncertainty of its true impact, because OSHA has not issued clear guidance for implementation.

“Employers aren’t certain how they’ll have to change their programs as it relates to big incentive programs and post-action drug testing programs,” he explains. “A lot of our members have such programs in place. Where we have a difference in opinion [with OSHA] is these programs are not in place to deter injury or illness reporting. They are designed to prevent workers from showing up to work under the influence of alcohol or drugs.”

OSHA issued the final rule in May 2016, with an original implementation date of August 10, but the provisions were delayed until Dec. 1, and the new requirement of submitting injury and illness data electronically goes into effect Jan. 1.

Since the rule was issued, Cannon says the federal agency has done little to direct construction employers in how to comply with these rules, and whether companies’ current safety and reporting programs will be deemed noncompliant.

The Anti-Retaliation Right

According to an OSHA news release, the final rule clarifies the requirement that an employer’s process for reporting work-related injuries and illnesses must be reasonable and not discourage workers from reporting. It also promotes the idea that employers must inform employees of their right to report work-related injuries and illnesses and that any reporting will be free from retaliation, and it incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

OSHA officials say the new rule is aimed at improving the tracking of injury and illness.

“Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” David Michaels, OSHA assistant secretary, said in a news release.

“Our new reporting requirements will nudge employers to prevent work injuries to show investors, job seekers, customers, and the public they operate safe and well-managed facilities. Access to injury data will also help OSHA better target compliance assistance and enforcement resources, and enable ‘big data’ researchers to apply their skills to making workplaces safer.”

Cannon said he and other AGC leaders met with OSHA officials to get clarification for their members on implementing the rule and exactly how it impacts the mandatory blanket post-incident drug testing.

“We would like to think OSHA has relaxed their position a little bit” since the meeting, he says. “Construction is a dangerous business, and employers have every reason to make sure that their workforce is not under the influence.”

The rule likely doesn’t cover every employer. Cannon explains that OSHA made it clear that employers who already have such programs in place to comply with state worker’s compensation laws are on solid ground, as are those that have implemented programs to receive discounts on their insurance premiums. Others without a consistently applied program will be reviewed on a case-by-case basis when issues arise.

“If a company has a multifaceted program, not designed to retaliate or discriminate against anyone, they’re going through the same exercise on [understanding] what’s compliant and what’s not,” he explains.

Electronic Reporting Requirements

Beginning Jan. 1, certain employers will be required to submit injury and illness data online. Analysis of the data will allow OSHA “to use its enforcement and compliance assistance resources more efficiently,” a news release said.

Some of the data will be posted on OSHA’s website, and the agency “believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. The amount of data submitted will vary depending on the size of company and type of industry,” the release said.

Users can enter their information manually on the web, upload a CSV file to process single or multiple reports at the same time, or transmit data electronically using an application programming interface.

The rule doesn’t require additional record keeping, just a new method for submitting the data electronically. But, it’s also drawing criticism from some in the construction industry.

“We were not a fan of that [part] either,” Cannon says. “This is how this whole ordeal started. OSHA was proposing requiring electronic reporting of injury and illness data, and it grew into this whole anti-retaliation discussion.”

Posting any injury or illness information online for the public to access will not help employers improve safety, he says. And, he suggests that OSHA is positioning itself to expand its reach and the requests made on employers when it comes to data submission.

“I think what will result from it is drawing conclusions based on the limited information on the website,” he explains, which could misrepresent the safety culture of a particular construction business. “It depends on how that second piece is completed to paint an accurate picture of the incident.”

For now, it’s unclear what the website and reports will look like, Cannon says, explaining that after the site is launched, AGC will educate members on the registration process, submission portals, and other aspects.

OSHA will likely release more guidance on the rule, and Cannon says AGC will ensure its members are kept up-to-date. For now, he urges construction companies to examine their injury and illness reporting programs.

“If you have alcohol and drug testing programs, make sure you apply it consistently across the board, regardless of the presence of an injury,” he explains. “On the other side, look at your program and make sure it’s focused on efforts to improve safety and not solely on numbers.”